SBXC v Minister for Immigration and Multicultural and Indigenous Affairs

The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.

The information is that, (in contrast to the claim made at the hearing that you intend to convert to the Baha'i faith), at your arrival interview, your protection visa application and in your interview with the Delegate, you said your concern was that you had been and would be accused of converting, although you were not a Baha'i and were still a practising Muslim. You did not say at any stage prior to the hearing, that you wished or intended to convert.

This information is relevant because it casts doubt on the genuineness of your stated wish and intention to adopt the Baha'i faith.

Although this matter was discussed at the hearing and addressed [in] your later submission, legislation requires the Tribunal to put it to you in a letter.

You are therefore invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by Friday, 16 September 2005.

Yours sincerely (Signed) for District Registrar' 10 On 19 September 2005 the Tribunal received a submission from the applicant in response to this letter. With the submission the Tribunal received a photocopy of a letter from the applicant's mother and a certified translation thereof. This letter is important because the applicant submits that the Tribunal did not have proper regard to it. The contents of the letter are adequately summarised by the Tribunal. The Tribunal's summary is as follows: 'The letter states that in May or June 2005 two vehicles (one police, the other unmarked) came to the house and four people claiming to be police entered, searched and ransacked the house, interrogated the applicant's family as to his whereabouts, and took the applicant's father away. He was detained for two days and was released on bail (giving his house deed as security). Three days later they came again and interrogated the family about [Applicant] and accused the applicant and his family of converting to Baha'i. Even before these contacts security people were patrolling the house. The home phone was bugged, and she did not want the applicant to call. [Applicant]'s father had also been detained and questioned. The letter concludes that the applicant has caused them headaches, and (although concerned at being far from him) urges him to "just leave us alone and forget about us", and is signed his loving mother.' 11 The Tribunal then considered the country information available to it. A summary of its findings based on that information is as follows: 1. The ability to travel in and out of Iran through legal exit/entry points is a reliable indication that a person is of no particular adverse political or security interest. Such a person would not warrant inclusion on a black list which is kept, or arrest. 2. A person who applied for political asylum abroad but who failed would not face serious harassment on his or her return to Iran. 3. There is a general obligation on young men in Iran to perform a period of military service. 4. Those persons who practise the Baha'i faith in Iran are the subject of discriminatory treatment by reason of that fact. However, there is no evidence that those who are friends with a Baha'i family suffer discriminatory treatment. 12 Before identifying the critical findings made by the Tribunal, it is convenient at this point to identify the applicant's submissions as to the jurisdictional errors he said were made by the Tribunal. 13 First, he submits that the Tribunal erred in not addressing his claim that he had a well-founded fear of persecution because the authorities in Iran would think that he was of the Baha'i faith. In other words, the Tribunal did not address his claim that even though he was not of the Baha'i faith, he would be persecuted because the authorities would think that he was of that faith. Secondly, he submits that the Tribunal erred in not addressing his claim that he would be persecuted during the performance of his military service. Thirdly, he submits that the Tribunal erred in not having proper regard to the letter from his mother. 14 As to the first submission, in my opinion, the Tribunal did address the applicant's claim that he had a well-founded fear of persecution because the authorities in Iran thought or might think that he was of the Baha'i faith. The Tribunal accepted that the applicant had a Baha'i friend and attended Baha'i gatherings in Iran. It accepted that Baha'i is a persecuted religious minority in Iran, and that a convert from Islam to the Baha'i faith would be at an even greater risk of persecution than someone born into a Baha'i family. 15 The Tribunal found that the applicant was not of adverse interest to the Iranian authorities. It did not accept that he was detained and questioned as he claimed or that the authorities harassed his family as he claimed, 'notwithstanding the letter from his mother'. The Tribunal was satisfied that had the applicant been under investigation as he claimed, he would have been blacklisted and he would not have been able to leave the country. It said that the fact that he was able to do so was a reliable indication that he was not of interest to the Iranian authorities. It said that its finding that the applicant was not of interest to the Iranian authorities was reinforced by the absence of information indicating that Iranians had been targeted merely for being friends with a Baha'i family. Furthermore, it said that if the authorities were aware that the applicant was attending Baha'i meetings, the country information suggested that it was most improbable that this would not have been an 'explicit' subject of his interrogation, or that he would have been released without charge. In my opinion, these findings were open to the Tribunal. The critical finding is that the applicant was not of interest to the Iranian authorities and that negated a conclusion that the authorities thought that he had converted to the Baha'i faith. 16 The Tribunal went on to deal with the applicant's claim that he intended to convert to Baha'i. He gave evidence of such an intention, and it was appropriate for the Tribunal to consider that question in view of the evidence that those of the Baha'i faith are a persecuted religious minority in Iran. The Tribunal said that it was not satisfied that the applicant intends to convert to the Baha'i faith. It noted that in his interview with the delegate, the applicant had said that he was not of the Baha'i faith and that he was still a Muslim. At that point he had a clear opportunity to state that he believed in the Baha'i faith and wished to formally convert. The Tribunal said: 'Yet his replies left the clear impression was [sic] that his concern was only about being a suspected convert, not about being a real convert who would not be able to freely practice his religion.' 17 The Tribunal noted that the applicant had taken no steps at all to research the Baha'i community in Australia and the reason he had not done that if he intended to convert was not persuasively explained. 18 The Tribunal said by way of conclusion that it did not accept that the applicant faced a real chance of serious harm in relation to 'his real or imputed religion'. The findings made by the Tribunal were open to it and it did address the claim that he intended to convert and would be persecuted as a result, and the claim that he would be persecuted because the authorities in Iran considered that he had converted. The applicant's first challenge to the Tribunal's decision must be rejected. 19 As to the second submission, this submission is related to the first. The laws requiring military service applied to all and there is no evidence that if he failed to perform military service he would suffer a harsher penalty for a Convention reason. Insofar as the applicant was saying that he would suffer persecution during his period of military service because the authorities considered that he was of the Baha'i faith, that submission must fail for the reasons that the first submission fails. 20 As to the third submission, the Tribunal set out in its reasons for decision a full description of the contents of the letter from the applicant's mother and that description is set out in [10] above. It made specific reference to it in the context of its finding that it was not prepared to accept that the authorities in Iran had harassed his family. That harassment was said to have taken place because of the interest the Iranian authorities took in the applicant. The Tribunal was entitled to conclude for the reasons it gave that the applicant was not of adverse interest to the Iranian authorities and therefore to reject his story that he had been detained and questioned. It was entitled to reject the assertion that his family had been harassed and it is clear that it took into account the letter from the applicant's mother in deciding whether it should reach that conclusion. The Tribunal had regard to the letter from the applicant's mother and did not err in the way alleged by the applicant. The third submission must be rejected.

Conclusion 21 The appeal must be dismissed and the applicant must pay the first respondent's costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko .

Solicitor for the Applicant: Westside Community Lawyers

Solicitor for the Respondent: Australian Government Solicitor, Adelaide